Submitted by / Soumis par : Daniel Bourgeois and David Gingras (April 14, 2011 / le 14 avril 2011)
Why municipal reforms are necessary – part 1: permissive legislation
Municipal reform has become an important topic of discussion in New Brunswick. Since
the Alward Government announced imminent changes to the way municipalities
operate, discussions on municipal legislation, finances and structures have filled the halls
of academia, provincial government offices and coffee shops. Most agree that change is
required, but there is no consensus on the specifics. The devil will be in the details.
Thus far, the debate has been framed by the Province, notably its Finn report published
in the Fall of 2008 and shelved immediately. Municipal associations and academics
chimed in, but to no avail: no action was taken. Action is now imminent: the Province
will soon consult citizens. Since municipal governance is complex and the problems
associated with our municipal system are ignored or misunderstood, we propose four
articles to highlight concrete examples of what is wrong with municipal governance in
New Brunswick, how the issues affect average citizens, and how we could resolve them.
In this first part, we look at the legislation guiding municipal operations. In the next
article, we will look at municipal finances. The third part will tackle municipal structures.
These three pillars of municipal governance are presented separately, but they are
interdependent. A fourth article will tie up the three strings and review the Finn report.
Municipal legislation
Unlike the federal and provincial governments, municipalities are not a level of
government. They are institutions of the Province. The Province could operate without
municipalities, but this would prove ineffective. First, there is a perception among
citizens that elected municipal councils form a ‘level of government’. After centuries of
local governance, eliminating municipalities would stir significant controversy. Second,
the provincial bureaucracy in Fredericton would be unable to handle thousands of
requests daily from hundreds of local employees throughout the province to approve
decisions requiring immediate attention. Third, provincial bureaucracies are effective
with standard one-size-fits-all decisions, but one issue in Shippagan will need a different
decision than a similar issue in Sussex. Finally, communities matter: although most local
services are standardized, including police, fire and building inspection, local wishes and
realities can affect the number and level of services. The Minister of Local Government
cannot effectively set the number and level of services for the 105 municipalities and
266 local service districts (LSDs) to the satisfaction of all citizens, but local councils can.
So, to maintain effective local services and democracy, the Province lets communities
establish a municipal corporation and, to ensure its appropriate oversight of these
institutions, it enacts legislation and regulations. In New Brunswick, more than 20
provincial statutes and regulations frame municipal operations. The most important
legislation is the Municipalities Act. When it was adopted, in 1966, it crowned New
Submitted by / Soumis par : Daniel Bourgeois and David Gingras (April 14, 2011 / le 14 avril 2011)
Brunswick as Canada’s most innovative province. But over the past 45 years, the other
provinces caught up and surpassed us while our Municipalities Act became outdated.
Our Act states that a municipality must provide police services and may provide ‘any
service deemed by the council to be expedient for the peace, order, and good
government of the municipality, and for promoting the health, safety, and welfare of
the inhabitants of the municipality including […] drainage; fire protection; garbage and
refuse collection and disposal; sewerage; sidewalks; roads and streets; regulation of
traffic; street lighting; water; parks; community services; tourist promotion and
development; industrial development and promotion; urban redevelopment and urban
renewal; housing; land assembly; recreational and sports facilities and programs; first
aid and ambulance services; and the sale of gas.’
At first glance, the list seems permissive. But a list of what municipalities ‘may’ do is
one thing; the fact they ‘may not’ do other things is another. Once Prince Edward Island
updates its legislation, probably this year, ours will be the only legislation that dictates
that municipalities can only act in matters prescribed by the Province.
A few examples will illustrate the fallacy of the restrictive approach in our day and age.
New Brunswick municipalities cannot regulate hunting and trapping within town limits.
A couple of men recently hunted – legally – within Moncton’s Centennial Park, located
in the middle of the city. The City intends to rectify the anomaly by prohibiting hunting
on its own land, but it cannot stop hunters from shooting a moose found wandering last
spring in undeveloped lands in the nearby Pinehurst area. Provincial regulations simply
require that the shotgun be fired at least 100 meters from a building. Municipalities
cannot ban uranium exploration or fracking for natural gas. Moncton was therefore
powerless to protect the Turtle Creek watershed that supplies water to 100,000 urban
residents. Municipalities cannot prohibit the use of jake brakes or adult entertainment
clubs. Finally, as the City of Moncton recently discovered in its laudable efforts to
enhance local democracy, municipalities cannot level the electoral playing field by,
among other things, providing tax credits for campaign contributions, forcing candidates
to disclose contributions or limiting candidate spending. Only the Province can enhance
local democracy, but it refuses to make significant efforts to that end.
Cosmetic pesticides provide another example. Shediac, Caraquet, Sackville and St.
Andrews banned pesticide use for cosmetic purposes within their respective towns,
even if they did not have the authority to do so. Since no one contested the by-laws,
the Province was forced to intervene to prevent a legal vacuum. It banned 200 different
pesticide products and recognized Integrated Pesticides Management as the law of the
land, thereby making the progressive efforts of the four more aggressive towns virtually
meaningless. Had the Municipalities Act been permissive, the debates would have been
resolved in town halls – taking into account the concerns of the local community.
Submitted by / Soumis par : Daniel Bourgeois and David Gingras (April 14, 2011 / le 14 avril 2011)
Another example: unlike most municipalities in North America, ours cannot charge an
accommodation levy to collect revenues from tourists to market our province to seduce
more tourists. Local hoteliers can establish a voluntary levy, but the amounts collected
and invested may jeopardize the levy without a by-law. The Cities Association of New
Brunswick has repeatedly asked the Province to enable municipalities to adopt a by-law
to establish local accommodation levies. This circular incoherence is ineffective.
An argument can be made that the Province should keep control because it can better
tackle those issues that spill over municipal boundaries. For instance, Rothesay could
ban cosmetic pesticides but pesticides sprayed 20 meters away in Quispamsis could
hover into Rothesay and negate the ban. One could also argue that municipalities
should not be able to tamper with democracy because councilors could be tempted to
rig the system in their favour. These arguments do not hold water.
Indeed, many municipalities in other parts of the country can intervene almost as they
wish, making ours appear powerless in comparison. Beginning in the mid-90s, provincial
governments elsewhere renewed their municipal legislation. Most of the new Acts
included a reinterpretation of what municipalities could and could not do. Rather than
listing specific items that municipalities could tackle, the new acts often described these
functions under broad categories, and most granted general powers to municipalities.
Some permissive legislation even allow a municipality to have a say on and pass by-laws
affecting most provincial matters within their own boundaries.
Alberta’s Municipal Government Act provides a good example. It states that the
purposes of a municipality are to provide good government, to develop and maintain
safe and viable communities, and to provide services, facilities or other things that, in
the opinion of council, are necessary or desirable for all or a part of the municipality.
The Act also gives municipalities ‘natural person powers’: it gives broad authority to
councils and respects their right to govern municipalities in whatever way the councils
deem appropriate, within the jurisdiction they are given. Finally, the Act seeks to
enhance the ability of councils to respond to present and future issues in their
municipalities. This is a far cry from our antiquated and restrictive Municipalities Act.
The only rational argument heard against permissive legislation is that it will allow our
elected municipal councilors to act on a variety of issues that will increase costs and
property taxes. The Province must thus ‘control’ our municipal councils. That argument
does not hold water. First, the Province is the last place one should look to for guidance
in regards to overspending and tax increases. Indeed, municipalities cannot incur
deficits, while the Province’s debt is over $750M. Second, if councilors dare invest
significant tax dollars to tackle unimportant issues, disgruntled citizens can get rid of
them at the subsequent municipal elections. Local citizens have no power over the
minister and provincial civil servants presently in charge of ‘controlling’ municipalities.
Submitted by / Soumis par : Daniel Bourgeois and David Gingras (April 14, 2011 / le 14 avril 2011)
On matters of provincial importance or when solutions are contentious, the Province
could still show leadership and provide direction. As it stands, the Province intercedes,
albeit in a heavy-handed and standard manner, and enforces a negotiated solution that
may be universal across New Brunswick. Also, if permissive legislation fails to improve
provincial and local services, the Province can always modify the Municipalities Act.
New Brunswick needs permissive legislation to give our municipal councils modern
governance tools. These tools are essential in an age shaped by significant and fastpaced change where our provincial legislature cannot foresee all future local issues.
More importantly, the Province cannot effectively prioritize the issues on behalf of the
citizens in their own community. Finally, uniform provincial restrictive legislation cannot
solve all local problems and should not prevent locally elected councils from resolving
pressing local issues. New Brunswickers deserve better. It is time to replace the
paternalistic and restrictive Municipalities Act with modern permissive legislation.
Daniel Bourgeois, Beaubassin Institute
David Gingras, MPA Student, Dalhousie University